952 F.3d 1051 (2020)
The en banc court affirmed the district court’s judgment after a jury trial in favor of Led Zeppelin in a copyright action alleging that the opening notes of Stairway to Heaven infringed Taurus, a song written by guitarist Randy Wolfe and performed by his band Spirit.
In Part I, the en banc court held that the 1909 Copyright Act, which does not protect sound recordings, rather than the 1976 Copyright Act, controlled its analysis because the copyright at issue was for the unpublished musical composition of Taurus, which was registered in 1967. The scope of the copyright in the unpublished work was defined by the deposit copy, which in the case of Taurus consisted of only one page of music. Accordingly, it was not error for the district court to decline plaintiff’s request to play sound recordings of the Taurus performance that contained further embellishments or to admit the recordings on the issue of substantial similarity.
In Part II, the en banc court held that proof of copyright infringement required plaintiff to show: (1) that he owned a valid copyright in Taurus; and (2) that Led Zeppelin copied protected aspects of the work. The en banc court explained that the second prong contains two separate components: “copying” and “unlawful appropriation.” A plaintiff may prove copying circumstantially by showing access and striking similarity. The hallmark of “unlawful appropriation” is that the works share substantial similarities. Both an extrinsic and an intrinsic test must be satisfied for the works to be deemed substantially similar.
In Part III, the en banc court addressed the district court’s exclusion of sound recordings of Taurus as relevant to prove access but too prejudicial because of the risk that the jury would confuse access with substantial similarity. The en banc court concluded that this evidentiary issue was moot because the jury found access.
In Part IV, the en banc court addressed three jury instruction issues: (1) the failure to give an inverse ratio rule instruction; (2) the sufficiency of the court’s originality instructions; and (3) the failure to give a selection and arrangement instruction. In Part IV.A, joining the majority of circuits, the en banc court rejected the inverse ratio rule, which requires a lower standard of proof of substantial similarity when a high degree of access is shown. The en banc court overruled circuit precedent to the contrary. In Part IV.B, the en banc court held that the district court properly instructed the jury on originality. In Part IV.C.1, the en banc court concluded that the failure to give a selection and arrangement instruction would be reviewed for plain error. In Part IV.C.2, the en banc court held that the district court did not commit plain error. In Part IV.C.3, the en banc court held that the district court did not commit any error because plaintiff did not present a selection and arrangement theory at trial. In Part IV.C.4, the en banc court held that, even though the district court did not instruct the jury on selection and arrangement, its instructions, as a whole, fairly and adequately covered plaintiff’s argument for extrinsic similarity between Taurus and Stairway to Heaven.
In Part V, the en banc court held that the district court did not err in setting trial time limits, responding to a jury question, admitting expert testimony, or declining to award attorneys’ fees.
Concurring, Judge Watford wrote that he joined the court’s opinion, with the exception of section IV.C, because he saw no reason to decide whether plaintiff adequately preserved his request for a selection-and-arrangement instruction when, even if such an instruction had been given, no reasonable jury could have found infringement.
Concurring in part and dissenting in part, Judge Ikuta, joined by Judge Bea, wrote that she dissented from Part IV(B) to (C) because, without plaintiff’s requested instruction on selection and arrangement, the jury was deprived of the opportunity to consider plaintiff’s central theory of the case, and the instructions given to the jury were misleading.
McKEOWN, Circuit Judge, with whom THOMAS, Chief Judge, FLETCHER, RAWLINSON, MURGUIA, NGUYEN, Circuit Judges, join in full, and with whom WATFORD, Circuit Judge, joins except as to Part IV.C, and with whom HURWITZ, Circuit Judge, joins except as to Parts IV.C.3 and IV.C.4, and with whom BADE, Circuit Judge, joins except as to Part IV.C.3:
Stairway to Heaven has been called the greatest rock song of all time. Yet, hyperbole aside, nearly 40 years after the English rock band Led Zeppelin released its hit recording, the song is not impervious to copyright challenges. The estate of guitarist Randy Wolfe claims that Led Zeppelin and its guitarist Jimmy Page and vocalist Robert Plant copied portions of Taurus, a song written by Wolfe and performed by his band Spirit.
This appeal stems from the jury’s verdict in favor of Led Zeppelin and a finding that the two songs are not substantially similar. Like the jury, we don’t need to decide whether Stairway to Heaven has a place in the annals of iconic rock songs. Instead, we address a litany of copyright issues, including the interplay between the 1909 and 1976 Copyright Acts, the inverse ratio rule, the scope of music copyright, and the standards for infringement.
The 1909 Copyright Act, which does not protect sound recordings, controls our analysis. The copyright at issue is for the unpublished musical composition of Taurus, which was registered in 1967. The unpublished work is defined by the deposit copy, which in the case of Taurus consists of only one page of music. We also join the majority of circuits in rejecting the inverse ratio rule and overrule our precedent to the contrary. Finally, we are not persuaded by the challenges to jury instructions and various other evidentiary and trial rulings. We affirm the district court’s entry of judgment in favor of Led Zeppelin and related parties.
Randy Wolfe, professionally known as Randy California, wrote the instrumental song Taurus in 1966 or 1967. He was a guitarist in the band Spirit. Spirit signed a recording contract in August 1967 and released its first eponymous album—which included Taurus—a few months later. Wolfe also entered into an Exclusive Songwriter’s and Composer’s Agreement with Hollenbeck Music Co. (“Hollenbeck”). In December 1967, Hollenbeck registered the copyright in the unpublished musical composition of Taurus, listing Wolfe as the author. As required for registration of an unpublished work under the 1909 Copyright Act, which was in effect at the time, Hollenbeck transcribed Taurus and deposited one page of sheet music (the “Taurus deposit copy”), with the United States Copyright Office.
Around the same time, across the Atlantic, another rock band, Led Zeppelin, was formed by Jimmy Page, Robert Plant, John Paul Jones, and John Bonham. Led Zeppelin released its fourth album in late 1971. The untitled album, which became known as “Led Zeppelin IV,” contained the now iconic song Stairway to Heaven. Stairway to Heaven was written by Jimmy Page and Robert Plant.
It is undisputed that Spirit and Led Zeppelin crossed paths in the late 1960s and the early 1970s. The bands performed at the same venue at least three times between 1968 and 1970. Led Zeppelin also performed a cover of a Spirit song, Fresh Garbage. But there is no direct evidence that the two bands toured together, or that Led Zeppelin band members heard Spirit perform Taurus.
Wolfe passed away in 1997. After his death, Wolfe’s mother established the Randy Craig Wolfe Trust (the “Trust”) 1 and served as the trustee until she passed away. Neither Wolfe nor his mother filed a suit regarding Stairway to Heaven. Michael Skidmore became a co-trustee of the Trust in 2006.
Fast forward forty-three years from the release of Stairway to Heaven to May 2014. Skidmore filed a suit alleging that Stairway to Heaven infringed the copyright in Taurus, naming as defendants Led Zeppelin, James Patrick Page, Robert Anthony Plant, John Paul Jones, Super Hype Publishing, and the Warner Music Group Corporation as parent of Warner/Chappell Music, Inc. (“Warner/Chappell”), Atlantic Recording Corporation, and Rhino Entertainment Co. (collectively “Led Zeppelin”). 2 One may wonder how a suit so long in the making could survive a laches defense. The Supreme Court answered this question in Petrella v. Metro-Goldwyn-Mayer, Inc., which clarified that laches is not a defense where copyright infringement is ongoing. 572 U.S. 663, 668 (2014).
Skidmore alleged direct, contributory, and vicarious copyright infringement. He also sought equitable relief for a claim that he titled “Right of Attribution—Equitable Relief—Falsification of Rock n’ Roll History.” Skidmore’s claims are not based on the entire Taurus composition. Rather, Skidmore claims that the opening notes of Stairway to Heaven are substantially similar to the eight-measure passage at the beginning of the Taurus deposit copy:
The claimed portion includes five descending notes of a chromatic musical scale. These notes are represented on the piano as a set of adjacent black and white keys, from right to left. The beginning of Stairway to Heaven also incorporates a descending chromatic minor chord progression in A minor. However, the composition of Stairway to Heaven has a different ascending line that is played concurrently with the descending chromatic line, and a distinct sequence of pitches in the arpeggios, which are not present in Taurus.
Led Zeppelin disputed ownership, access, and substantial similarity. Led Zeppelin also alleged affirmative defenses, including independent creation, unclean hands, and laches.
At the close of discovery, Led Zeppelin moved for summary judgment. The district court granted the motion in part and denied it in part. The district court dismissed the claims against defendants John Paul Jones, Super Hype Publishing, and Warner Music Group because they had not performed or distributed Stairway to Heaven within the three-year statute of limitations period preceding the filing of the complaint. The district court also granted summary judgment to Led Zeppelin on Skidmore’s “Right of Attribution—Equitable Relief: Falsification of Rock n’ Roll History” claim. Although the claim was “creatively termed” and “inventive” according to the district court, a right of attribution claim under the Copyright Act extends only to visual arts.
The district court also ruled that under the 1909 Act, the scope of the copyright was circumscribed by the musical composition transcribed in the Taurus deposit copy. Thus, only the one-page Taurus deposit copy, and not a sound recording, could be used to prove substantial similarity between Taurus and Stairway to Heaven.
The district court granted Led Zeppelin’s motion in limine to exclude Taurus sound recordings and expert testimony based on those recordings. The district court again concluded that the Taurus deposit copy, rather than any recordings of Spirit’s performance of Taurus, formed the sole benchmark for determining substantial similarity. The district court found that there were triable issues of fact relating to ownership, access, substantial similarity, and damages.
Against the backdrop of these rulings, the trial lasted five days. Two key issues predominated: access to Taurus by Led Zeppelin band members and substantial similarity.
On the access question, the district court allowed Skidmore to play various sound recordings of Taurus for Page outside of the presence of the jury. Skidmore then examined Page on access in front of the jury. Page testified that he owned “a copy of the album that contains ‘Taurus,’ . . . in [his] collection,” while denying “any knowledge of ‘Taurus.’”
The substantial similarity question pitted two expert musicologists against each other. Skidmore’s expert, Dr. Alexander Stewart, analyzed, one by one, five categories of similarities. Dr. Stewart acknowledged that a chromatic scale and arpeggios are common musical elements. But he found Taurus and Stairway to Heaven to be similar because the descending chromatic scales in the two compositions skip the note E and return to the tonic pitch, A, and the notes in the scale have the same durations. Then he pointed to three two-note sequences—AB, BC, and CF#—that appear in both compositions. In his view, the presence of successive eighth-note rhythms in both compositions also made them similar. Finally, he testified that the two compositions have the same “pitch collection,” explaining that certain notes appear in the same proportions in the beginning sequence of both works.
In sum, Dr. Stewart claimed that five musical elements in combination were copied because these elements make Taurus unique and memorable, and these elements also appear in Stairway to Heaven. Skidmore’s closing argument reinforced these points. Neither Dr. Stewart nor Skidmore’s counsel argued that the categories of similarities were selected and arranged to form protectable expression in the design, pattern, or synthesis of the copyrighted work. Nor did they make a case that a particular selection and arrangement of musical elements were copied in Stairway to Heaven.
Led Zeppelin’s expert, Dr. Lawrence Ferrara, testified that the two compositions are completely distinct. To highlight the marked differences in the compositions, he presented the following exhibit, which juxtaposed the claimed portion of Taurus against Stairway to Heaven: 3
Dr. Ferrara testified that the similarities claimed by Skidmore either involve unprotectable common musical elements or are random. For example, Dr. Ferrara explained that the similarity in the three two-note sequences is not musically significant because in each song the sequences were preceded and followed by different notes to form distinct melodies. He described the purported similarity based on these note sequences as akin to arguing that “crab” and “absent” are similar words because they both have the letter pair “ab.” He also testified that the similarity in the “pitch collection” is not musically meaningful because it is akin to arguing that the presence of the same letters in “senator” and “treason” renders the words similar in meaning.
At the close of trial, the district court discussed with counsel the intended jury instructions. The district court did not give the proposed instructions on the inverse ratio rule and the selection and arrangement of unprotectable elements. Skidmore objected to the district court’s decision to omit an inverse ratio instruction but did not do so as to the omitted selection and arrangement instruction.
The jury returned a verdict for Led Zeppelin. In special interrogatories, the jury found that Skidmore owned the copyright to Taurus and that Led Zeppelin had access to Taurus, but that the two songs were not substantially similar under the extrinsic test. Following the verdict, the district court entered a judgment and an amended judgment. 4 Skidmore did not file any post-judgment motions challenging the verdict, but timely appealed from the amended judgment.
Significantly, Skidmore does not make a substantial evidence claim. Instead, he focuses on a handful of legal issues, challenging: (1) the ruling that substantial similarity must be proven using the copyright deposit copy; (2) the ruling that sound recordings could not be played to prove access; (3) various jury instructions; (4) the imposition of overall time limits for the trial; (5) the fact that the full version of Taurus was played in response to the jury’s request; and (6) the decision not to exclude or sanction Dr. Ferrara because of a claimed conflict of interest.
Warner/Chappell filed separate motions for attorneys’ fees and costs, which the district court denied. Warner/Chappell timely cross-appealed and the two appeals were consolidated.
A panel of our court vacated the amended judgment in part and remanded for a new trial. We granted rehearing en banc. 5 Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir. 2018), reh’g en banc granted, 925 F.3d 999 (9th Cir. 2019).
The world of copyright protection for music changed dramatically during the twentieth century and those changes dictate our analysis here. The baseline issue we address is the scope of Wolfe’s copyright in the unpublished composition Taurus, which was registered in 1967, between the passage of the Copyright Act of 1909 (“1909 Act”) and the sweeping copyright reform adopted in the Copyright Act of 1976 (“1976 Act”). We conclude that the 1909 Act controls and that the deposit copy defines the scope of the Taurus copyright.
Although it seems unthinkable today, musical compositions were not explicitly subject to copyright in the United States until 1831, when Congress added “musical composition” to the list of statutorily protected works. Copyright Act of 1831, ch. 16, § 1, 4 Stat. 436, 436 (repealed 1909). Thus, the “musical composition,” which was understood to be a printed form of the music, joined the statutory protection afforded to dramatic compositions, maps, charts, engraving, photographs and other works.
Between 1831 and the early 1900s, a number of machines were invented that allowed mechanical reproduction of a musical composition. Goldstein v. California, 412 U.S. 546, 564 (1973). With the advent of player pianos at the turn of the century, the question arose whether copyright protection extended to the infringement of musical compositions by perforated piano rolls. 6 The Supreme Court held that the copyright statute barred the unauthorized copying of a musical composition “in intelligible notation,” but that it would be “strained and artificial” to consider musical sounds coming from an instrument to be a copy. White-Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1, 17–18 (1908). Justice Holmes commented in his concurrence that “[o]n principle anything that mechanically reproduces that collocation of sounds ought to be held a copy, or, if the statute is too narrow, ought to be made so by a further act.” Id. at 20.
Congress stepped in to remedy the situation, perhaps heeding Justice Holmes’s call. The Copyright Act of 1909—landmark legislation that significantly revised copyright law—categorized mechanically-reproduced musical compositions, such as those played on player pianos and phonograph players, as “copies” of the original composition. 1909 Act, ch. 320, § 1(e), 35 Stat. 1075, 1075 (1909) (repealed 1976).
The statute provided copyright protection against “any arrangement or setting of [the musical composition] or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced.” Id. Skidmore seizes on this language to argue that the new legislation extended copyright protection beyond sheet music. The text does not support this reading. Although the 1909 Act extended copyright protection against infringement beyond the mere reproduction of the sheet music, Congress did not provide that copyrighted works could be anything other than sheet music or, for an unpublished work, the musical composition transcribed in the deposit copy. 1909 Act §§ 5, 11.
The Court reinforced this principle in Goldstein v. California when it noted that the amendments insured that composers of original musical works received adequate protection, and that “records and piano rolls were to be considered as ‘copies’ of the original composition . . . , and could not be manufactured” without a specified royalty payment. 412 U.S. at 565–66. The Court emphasized that “composers were to have no control over the recordings themselves,” which Congress considered “a component part of a machine, capable of reproducing an original composition,” or “renderings of original artistic performance.” Id. at 566.
Requiring more formalities than the current copyright act, the procedures for obtaining copyright protection under the 1909 Act were very specific. Registration for an unpublished musical work could be obtained “by the deposit, with claim of copyright, of one complete copy of such work” with the Copyright Office. 1909 Act § 11. In contrast, protection for a published work could be secured by affixing a copyright notice “to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor.” Id. § 9. Either way, distributing sound recordings did not constitute publication under the 1909 Act, so musical compositions were only published if the sheet music also was published. See ABKCO Music, Inc. v. LaVere, 217 F.3d 684, 688 (9th Cir. 2000). Significantly, the Copyright Office did not even accept sound recordings as deposit copies. Indeed, “in order to claim copyright in a musical work under the 1909 Act, the work had to be reduced to sheet music or other manuscript form.” 1 M. Nimmer & D. Nimmer, Nimmer on Copyright (“Nimmer”) § 2.05[A] (2017).
Sound recordings did not become subject to copyright protection until 1972, and then only for the sound recordings fixed on or after February 15, 1972. 17 U.S.C. § 301(c). The amendment did nothing to change the requirements of the 1909 Act or the status of the Taurus copyright.
The copyright requirements were changed dramatically by the 1976 Copyright Act, which provided that public distribution of a sound recording qualified as publication of a musical composition. Id. § 101. In other words, composers could submit a recording rather than sheet music as the deposit copy for a musical composition. The catch, for this case, is that publication before the 1978 effective date is not covered by the new statute.
The 1967 deposit copy of Taurus is a single page of sheet music. Skidmore suggests that the copyright extends beyond the sheet music; that is, the deposit copy is somehow archival in nature and more of a reference point than a definitive filing. This approach ignores the text of the statute and the purpose of the deposit.
We have outlined copyright protection under the 1909 Act as follows: “[A]n unpublished work was protected by state common law copyright from the moment of its creation until it was either published or until it received protection under the federal copyright scheme.” ABKCO, 217 F.3d at 688 (quoting LaCienega Music Co. v. ZZ Top, 53 F.3d 950, 952 (9th Cir. 1995)). The referenced federal copyright protection for unpublished works is found in the text of the statute: “copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a . . . musical composition . . . .” 1909 Act § 11.
The text is clear—for unpublished works, the author must deposit one complete copy of such work. The purpose of the deposit is to make a record of the claimed copyright, provide notice to third parties, and prevent confusion about the scope of the copyright. See Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1161–62 (1st Cir. 1994) (the deposit requirement provides the “Copyright Office with sufficient material to identify the work in which the registrant claims a copyright . . . [and] prevent[s] confusion about which work the author is attempting to register”), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010); Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law 71 (1961) (one of the purposes of the deposit is “to identify the work” being registered).
Even before the 1909 Act, the Supreme Court stated that one objective of the deposit was to permit inspection by other authors “to ascertain precisely what was the subject of copyright.” Merrell v. Tice, 104 U.S. 557, 561 (1881). At the time that Taurus was registered, the Copyright Office’s practice regarding applications to register unpublished musical compositions was to consider “writ[ing] to the applicant, pointing out that protection extends only to the material actually deposited, and suggesting that in his own interest he develop his manuscript to supply the missing element.” Compendium of Copyright Office Practices (“Copyright Office Compendium”) § 2.6.1.II.a (1st ed. 1967) (emphasis added). The inescapable conclusion is that the scope of the copyright is limited by the deposit copy.
The practical treatment of deposit copies underscores their importance. The 1909 Act prohibits destruction of copies of unpublished works without notice to the copyright owner. 1909 Act §§ 59–60. Buttressing this protection, the Register of Copyright’s policy is to retain access to the deposit copies of unpublished works for the full copyright term. See Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law at 80–81.
The cases Skidmore cites to suggest that the content of the deposit copy may be supplemented are not instructive. See, e.g., Washingtonian Publ’g Co. v. Pearson, 306 U.S. 30, 41–42 (1939) (addressing the failure to promptly submit a deposit copy for a published work); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486–87 (9th Cir. 2000) (addressing whether an incomplete deposit copy contained the “essential elements” of the musical composition such that subject matter jurisdiction was proper). Nor do the cases analyzing the 1976 Act illuminate the copyright scope question under the 1909 Act. See Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 276 (6th Cir. 2009); Nat’l Conference of Bar Exam’rs v. Multistate Legal Studies, Inc., 692 F.2d 478, 482–83 (7th Cir. 1982).
Although Skidmore offers a host of reasons why adherence to the statute complicates proof in copyright cases, these arguments cannot overcome the statutory requirements. For example, Skidmore claims that it is impractical to compare a sound recording of the infringing work to a deposit copy of the infringed work, even though that is precisely what happened here, and experts for both sides were confident in their analysis. Indeed, during the trial, Skidmore’s master guitarist, Kevin Hanson, performed the Taurus deposit copy as he interpreted it.
Skidmore also complains that restricting protection to the deposit copy disadvantages musicians who do not read music because it can be time consuming and expensive to make an accurate deposit copy. Apparently, that was not a problem here, as Wolfe’s work was transcribed for the sheet music deposit. Digital transcription and other technological advances undercut this argument, not to mention that for decades now, sound recordings have been accepted as the deposit copy. Finally, Skidmore offers conjecture about what might happen if a deposit copy were lost or destroyed. We need not play this “what if” guessing game because the statute is clear and unambiguous.
The district court correctly concluded that under the 1909 Act, which controls the copyright registration in this case, the Taurus deposit copy circumscribes the scope of the copyright. Because the deposit copy defines the four corners of the Taurus copyright, it was not error for the district court to decline Skidmore’s request to play the sound recordings of the Taurus performance that contain further embellishments or to admit the recordings on the issue of substantial similarity.
Proof of copyright infringement requires Skidmore to show: (1) that he owns a valid copyright in Taurus; and (2) that Led Zeppelin copied protected aspects of the work. Rentmeester v. Nike, Inc., 883 F.3d 1111, 1116–17 (9th Cir. 2018) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Skidmore’s ownership of a valid copyright in Taurus was not challenged on appeal.
The second prong of the infringement analysis contains two separate components: “copying” and “unlawful appropriation.” Rentmeester, 883 F.3d at 1117. Although these requirements are too often referred to in shorthand lingo as the need to prove “substantial similarity,” they are distinct concepts.
Because independent creation is a complete defense to copyright infringement, a plaintiff must prove that a defendant copied the work. Feist, 499 U.S. at 345–46. In the absence of direct evidence of copying, which is the case here, the plaintiff “can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying.” Rentmeester, 883 F.3d at 1117. This type of probative or striking similarity shows that the similarities between the two works are due to “copying rather than . . . coincidence, independent creation, or prior common source.” Bernal v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043, 1052 (C.D. Cal. 2010) (omission in original) (quoting 4 Nimmer § 13.02[B]). A finding of such similarity may be based on the overlap of unprotectable as well as protectable elements. Rentmeester, 883 F.3d at 1117.
On the other hand, the hallmark of “unlawful appropriation” is that the works share substantial similarities. Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004). In our circuit, we use a two-part test to determine whether the defendant’s work is substantially similar to the plaintiff’s copyrighted work. Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002). The first part, the extrinsic test, compares the objective similarities of specific expressive elements in the two works. Id. Crucially, because only substantial similarity in protectable expression may constitute actionable copying that results in infringement liability, “it is essential to distinguish between the protected and unprotected material in a plaintiff’s work.” Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). The second part, the intrinsic test, “test[s] for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.” Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 637 (9th Cir. 2008) (quoting Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994)). Both tests must be satisfied for the works to be deemed substantially similar. See Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1077 (9th Cir. 2006).
At trial, one of Skidmore’s key arguments was that Led Zeppelin members heard either performances or recordings of Taurus before creating Stairway to Heaven, and thus had access for purposes of copying the music. To prove that point, Skidmore wanted to play several recordings of Taurus during the testimony of Jimmy Page, claiming that observing Page listening to the recordings would have enabled the jury to evaluate his demeanor with respect to access. Skidmore’s counsel explained that the recordings could be offered to prove access, even if the court excluded them for proving substantial similarity. The district court determined that although the sound recordings were relevant to prove access, Skidmore’s approach would be “too prejudicial for the jury” because it risked confusing access with substantial similarity. Hence the court excluded the recordings under Federal Rule of Evidence 403. The court instead permitted Skidmore’s counsel to play the recordings for Page outside the presence of the jury and then question him about the recordings in front of the jury.
Skidmore’s position is a curious one and defies common sense. There would have been very little, if any, probative value in watching Page’s reaction to listening to Taurus at the trial in 2016 to prove access to the song half a century ago. To prevent the jury from making an erroneous comparison for determining substantial similarity, the court properly excluded the sound recording, which contains performance elements that are not protected by the Taurus deposit copy. Indeed, the court’s exclusion ruling displayed a clear understanding of the distinct components of copying and unlawful appropriation, letting the evidence in “as far as access,” but “not . . . to compare the performance” to Stairway to Heaven.
In any event, the evidentiary question is moot. It turns out Skidmore’s examination of Page on access proved fruitful. When Page testified, he candidly admitted to owning “a copy of the album that contains ‘Taurus,’ . . . in [his] collection,” though still denying “any knowledge of ‘Taurus.’” The jury found that both Page and Plant “had access to the musical composition Taurus before Stairway to Heaven was created.” Once the jury made that finding, the remaining questions on the jury verdict form related to substantial similarity of the works.
In answer to the question of whether “original elements of the musical composition Taurus are extrinsically similar to Stairway to Heaven,” the jury said no. Because the extrinsic test was not satisfied, the jury did not reach the intrinsic test. Although these findings ended the jury’s copyright analysis, Skidmore also challenges various trial rulings.
Three jury instructions are at issue in this appeal: (1) the failure to give an inverse ratio rule instruction; (2) the sufficiency of the court’s originality instructions; and (3) the failure to give a selection and arrangement instruction. We review for abuse of discretion the district court’s formulation of the instructions and review de novo whether the instructions accurately state the law. Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 941 (9th Cir. 2011). We consider the issued instructions as a whole, but reversal is not warranted if “the error is more probably than not harmless.” Swinton v. Potomac Corp, 270 F.3d 794, 802, 805 (9th Cir. 2001) (quoting Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992)). “[W]hen a litigant in a civil trial fails to object to a jury instruction, we may review the challenged jury instruction for plain error.” Chess v. Dovey, 790 F.3d 961, 970 (9th Cir. 2015).
Copyright infringement cases often boil down to the crucial question of substantial similarity. We have stated that “substantial similarity is inextricably linked to the issue of access,” and have adhered to “what is known as the ‘inverse ratio rule,’” which requires “a lower standard of proof of substantial similarity when a high degree of access is shown.” Three Boys Music, 212 F.3d at 485 (quoting Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996)). That is, “the stronger the evidence of access, the less compelling the similarities between the two works need be in order to give rise to an inference of copying.” Rentmeester, 883 F.3d at 1124.
Skidmore proposed an inverse ratio rule instruction, but the court chose not to give the instruction. The court reaffirmed this decision when Skidmore raised the question again after the close of testimony: “We’re not going to give that instruction.” Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary. See e.g., Three Boys Music, 212 F.3d at 485–86; Shaw v. Lindheim, 919 F.2d 1353, 1361–62 (9th Cir. 1990).
The circuits are split over the inverse ratio rule, but the majority of those that have considered the rule declined to adopt it. The Second, Fifth, Seventh, and Eleventh Circuits have rejected the rule. Peters v. West, 692 F.3d 629, 634–35 (7th Cir. 2012) (noting that the circuit has never endorsed the idea that “a ‘high degree of access’ justifies a ‘lower standard of proof’ for similarity”); Positive Black Talk, Inc. v. Cash Money Records, Inc., 394 F.3d 357, 371 (5th Cir. 2004) (acknowledging the rule but explicitly not adopting it), abrogated on other grounds by Reed Elsevier, 559 U.S. 154; Beal v. Paramount Pictures Corp., 20 F.3d 454, 460 (11th Cir. 1994); Arc Music Corp. v. Lee, 296 F.2d 186, 187–88 (2d Cir. 1961). Only our circuit and the Sixth Circuit have endorsed it. 7 See Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004); see also Peters, 692 F.3d at 634 (similarly describing the split).
But even within our circuit, our embrace and application of the rule have had a “checkered application.” 4 Nimmer § 13.03[D]. The very nature of the rule spawned uncertainty in its application. We first articulated the rule in 1977, holding that the high “degree of access” present in that case “justifie[d] a lower standard of proof to show substantial similarity,” though “[n]o amount of proof of access will suffice to show copying if there are no similarities.” Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir. 1977), superseded on other grounds by 17 U.S.C. § 504(b). In its next breath, the court in Krofft admitted that “it is impossible to quantify this standard,” so it is unsurprising that the court was unclear—failing to explain whether the rule applied to the actual copying or unlawful appropriation prong of the infringement analysis. Id.; see David Aronoff, Exploding the “Inverse Ratio Rule,” 55 J. Copyright Soc’y U.S.A. 125, 136 (2008) (“[T]he court [in Krofft] was confused as to whether the [inverse ratio rule] applied to the element of actual copying or unlawful appropriation . . . .”).
A decade later, we reversed course and distanced ourselves from Krofft, relying on the Second Circuit’s rejection of the inverse ratio rule in Arc Music. See Aliotti v. R. Dakin & Co., 831 F.2d 898, 902 (9th Cir. 1987). According to Aliotti, because the rule “ha[d] been employed by no Ninth Circuit case since Krofft and had been earlier criticized for ‘confus[ing] and even conceal[ing]’ the requirement of substantial similarity,” the court declined to “address the continuing viability of” the rule. Id. (alteration in original) (quoting Arc Music, 296 F.2d at 187–88). But Aliotti was a momentary detour. We later returned to the inverse ratio rule and, in a series of cases throughout the 1990s and early 2000s, applied it in confusing ways.
Revitalizing Krofft, we several times affirmed that the rule guided our analysis of similarity. See, e.g., Three Boys Music, 212 F.3d at 485–86; Smith, 84 F.3d at 1218 & n.5; Shaw, 919 F.2d at 1361–62. Even so, we did not explain how to apply the rule. See Aronoff, supra, at 137 (applying the rule in the context of the unlawful appropriation analysis, “the court did not articulate how [access] is to be considered, or the weight it is to be given”).
The lack of clear guidance is likely due in no small part to our use of the term “substantial similarity,” both in the context of copying and unlawful appropriation, muddying the waters as to what part of the infringement analysis the rule applies. See 3 William F. Patry, Patry on Copyright (“Patry”) § 9.91 (2017) (“The inverse ratio theory confuses fundamental principles of infringement analysis: access is relevant only in establishing the act of copying, not in establishing the degree thereof. Once copying is established, access is irrelevant and the inquiry shifts to the final stage of the infringement analysis, material appropriation.”). In Rentmeester, we pointed out the term’s dual use and ultimately stated that the inverse ratio rule “assists only in proving copying, not in proving unlawful appropriation.” 883 F.3d at 1124.
Capping off this period of expansion, we even pushed past the rule’s outer limits set forth in Krofft, i.e., that “[n]o amount of proof of access will suffice to show copying if there are no similarities.” 562 F.2d at 1172. In Metcalf v. Bochco, though we did not explicitly name the rule, we held that because access was not disputed, we “could easily infer that the many [generic] similarities between [the works] were the result of copying, not mere coincidence.” 294 F.3d 1069, 1074–75 (9th Cir. 2002).
Confusion followed in Metcalf’s wake. In one case, we tried to cabin Metcalf to cases where there was a clear “concession of access.” Rice v. Fox Broad. Co., 330 F.3d 1170, 1178–79 (9th Cir. 2003). In other cases, where access was assumed (though not conceded), we “side-stepped” Metcalf and held that the similarities between works were insufficient to support a conclusion of copying. Aronoff, supra at 139; see e.g., Funky Films, 462 F.3d at 1081 n.4; Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 625 (9th Cir. 2010). The result?—confusion about when to apply the rule and the amount of access and similarity needed to invoke it.
Our jurisprudence in recent years brought additional uncertainty. In 2000, we circumscribed the rule by explaining that it is not a two-way street: while the rule “requires a lesser showing of substantial similarity if there is a strong showing of access,” it does not mean that “a weak showing of access requires a stronger showing of substantial similarity.” Three Boys Music, 212 F.3d at 486. In 2018, it seems, the rule goes both ways: it also provides that the “more compelling the similarities supporting an inference of copying, the less compelling the evidence of access need be.” Rentmeester, 883 F.3d at 1124. 8 In the face of tangled precedent, the Rentmeester panel tried to carefully thread the needle, but ended up adding another indecipherable stitch.
Just two years ago, we again sowed doubt whether the rule ought to apply at all. In Williams v. Gaye, which dealt with the song Blurred Lines, the majority initially defended use of the rule against the dissent’s criticism because the rule is “binding precedent” that “we are bound to apply.” 885 F.3d 1150, 1163 n.6 (9th Cir. 2018). But in an amended opinion, the court deleted all references to the rule. Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018). One commentator posited the rule was excised because it “is so controversial.” Edwin F. McPherson, Crushing Creativity: The Blurred Lines Case and Its Aftermath, 92 S. Cal. L. Rev. Postscript 67, 75 n.22 (2018).
As we struggled with the inverse ratio rule over the years, the Second Circuit rejected it as early as 1961, describing the idea as a “superficially attractive apophthegm which upon examination confuses more than it clarifies.” Arc Music, 296 F.2d at 187. The court reasoned that “access will not supply [similarity’s] lack, and an undue stress upon that one feature can only confuse and even conceal this basic requirement.” Id. at 187–88. Importantly, the Second Circuit noted that there is “no such principle” in “the federal law of copyright.” Id. at 187.
The Second Circuit also identified the problematic implications of this principle where access is very high and similarity very low: “[t]he logical outcome of the claimed principle is obviously that proof of actual access will render a showing of similarities entirely unnecessary.” Id. However, “it does not follow that ‘more’ access increases the likelihood of copying.” Aronoff, supra, at 126. Yet that is what the rule compels. Complete access without any similarity should never result in infringement liability because there is no infringement. Even so, the rule suggests that liability may be imposed in such a case. “There is,” however, “simply no logic in presupposing that the mid-points of [the rule] give rise to a ‘ratio’ of access to similarity constituting proof of” infringement. Id. at 141. Indeed, even “[w]hen the inverse ratio rule is applied, we still don’t know how much similarity is required.” Patry § 9.91.
The flaws in the rule can be seen in the inconsistent ways in which we have applied the rule within our circuit, the logic of the circuits that have rejected the rule, and analysis by academics and commentators. See id. (“There is nothing positive that can be said about a rule that lacks any clarity at all: trying to get a jury to both understand the rule and apply it properly is totally impossible.”).
As a practical matter, the concept of “access” is increasingly diluted in our digitally interconnected world. Access is often proved by the wide dissemination of the copyrighted work. See Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016). Given the ubiquity of ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by a trivial showing that the work is available on demand. See Brooks Barnes, The Streaming Era Has Finally Arrived. Everything Is About to Change., N.Y. Times, Nov. 18, 2019 (In addition to Netflix, which “entertain[s] more than 158 million subscribers worldwide,” there are currently “271 online video services available in the United States”).
To the extent “access” still has meaning, the inverse ratio rule unfairly advantages those whose work is most accessible by lowering the standard of proof for similarity. Thus the rule benefits those with highly popular works, like The Office, which are also highly accessible. But nothing in copyright law suggests that a work deserves stronger legal protection simply because it is more popular or owned by better-funded rights holders.
Finally, the inverse ratio rule improperly dictates how the jury should reach its decision. The burden of proof in a civil case is preponderance of the evidence. Yet this judge-made rule could fittingly be called the “inverse burden rule.”
Although we are cautious in overruling precedent—as we should be—the constellation of problems and inconsistencies in the application of the inverse ratio rule prompts us to abrogate the rule. Access does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work. By rejecting the inverse ratio rule, we are not suggesting that access cannot serve as circumstantial evidence of actual copying in all cases; access, however, in no way can prove substantial similarity. We join the majority of our sister circuits that have considered the inverse ratio rule and have correctly chosen to excise it from copyright analysis. In light of this holding, the district court did not err in failing to instruct the jury on the inverse ratio rule.
Although copyright protects only original expression, it is not difficult to meet the famously low bar for originality. Feist, 499 U.S. at 345 (“The sine qua non of copyright is originality”; “[t]he vast majority of works make the grade quite easily . . . .”); see also 17 U.S.C. § 102(a) (“Copyright protection subsists . . . in original works of authorship . . . .”).
Even in the face of this low threshold, copyright does require at least a modicum of creativity and does not protect every aspect of a work; ideas, concepts, and common elements are excluded. See 17 U.S.C. § 102(b); Feist, 499 U.S. at 345–46. Nor does copyright extend to “common or trite” musical elements, Smith, 84 F.3d at 1216 n.3, or “commonplace elements that are firmly rooted in the genre’s tradition,” Williams, 895 F.3d at 1140–41 (Nguyen, J., dissenting). These building blocks belong in the public domain and cannot be exclusively appropriated by any particular author. See Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003) (“[E]xpressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law”). Authors borrow from predecessors’ works to create new ones, so giving exclusive rights to the first author who incorporated an idea, concept, or common element would frustrate the purpose of the copyright law and curtail the creation of new works. See id. at 813 (“we must be careful in copyright cases not to cheat the public domain”); Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985) (“General ideas . . . remain forever the common property of artistic mankind.”); 1 Nimmer § 2.05[B] (“In the field of popular songs, many, if not most, compositions bear some similarity to prior songs.”). With these background principles in mind, we review the district court’s instructions on originality, Nos. 16 and 20. 9
Jury Instruction No. 16 explained “what a copyright is, what it protects, and what it does not protect.” 10 Relevant to this appeal, the instruction provided that “[c]opyright only protects the author’s original expression in a work.” This statement comes straight from the Supreme Court’s opinion in Feist. The instruction went on to state that copyright “does not protect ideas, themes or common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes.” Although this statement is derived from Smith, Skidmore objects to the list of unprotectable elements. In particular, he argues that characterizing the “descending chromatic scales, arpeggios or short sequence of three notes” as examples of “common musical elements” was prejudicial to him.
To put this instruction in context, it is useful to outline the essence of the “common musical elements” or building blocks. The chromatic scale is one of two principal scales in Western music. It consists of twelve pitches separated by a half-step. On a piano, this means playing the white and black keys in order from left to right. Three or more notes or pitches sounded simultaneously are called chords, and an arpeggio, sometimes called a broken chord, is “[a] chord whose pitches are sounded successively, . . . rather than simultaneously.” Arpeggio, Chromatic, and Chord, Harvard Dictionary of Music (Don Michael Randel ed., 4th ed. 2003).
To conduct a copyright infringement analysis, the factfinders ask “whether ‘the protectible elements, standing alone, are substantially similar’” and “disregard the non-protectible elements.” Cavalier, 297 F.3d at 822 (quoting Williams v. Crichton, 84 F.3d 581, 588 (2d Cir. 1996)); see Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1446 (9th Cir. 1994) (same). Jury Instruction No. 16 correctly listed non-protectable musical building blocks that no individual may own, and did not, as Skidmore claims, exclude the particular use of musical elements in an original expression.
For example, despite Skidmore’s challenge to the characterization of descending chromatic scales as unprotectable, even his own expert musicologist, Dr. Stewart, agreed musical concepts like the minor chromatic line and the associated chords have been “used in music for quite a long time” as “building blocks.” This candid acknowledgement was echoed by Led Zeppelin’s expert. Dr. Ferrara described the “chromatic scale, descending or ascending,” as “a musical building block. This is something that no one can possibly own.” The commonality of descending scales and arpeggios has been reinforced by the Copyright Office, which lists “[d]iatonic or chromatic scales” and “arpeggios” as common property musical material. Copyright Office Compendium § 802.5(A) (3d ed. 2017). Emphasizing the importance of original creation, the Copyright Office notes that “a musical work consisting entirely of common property material would not constitute original authorship.” Id. Just as we do not give an author “a monopoly over the note of B-flat,” descending chromatic scales and arpeggios cannot be copyrighted by any particular composer. Swirsky, 376 F.3d at 851.
We have never extended copyright protection to just a few notes. Instead we have held that “a four-note sequence common in the music field” is not the copyrightable expression in a song. Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 721 (9th Cir. 1976). In the context of a sound recording copyright, we have also concluded that taking six seconds of the plaintiff’s four-and-a-half-minute sound recording—spanning three notes—is de minimis, inactionable copying. See Newton, 388 F.3d at 1195–96. One of our colleagues also expressed skepticism that three notes used in a song can be copyrightable by observing that of the “only 123 or 1,728 unique combinations of three notes,” not many would be useful in a musical composition. See Williams, 895 F.3d at 1144 n.6 (Nguyen, J., dissenting). The Copyright Office is in accord, classifying a “musical phrase consisting of three notes” as de minimis and thus not meeting the “quantum of creativity” required under Feist. Copyright Office Compendium, § 313.4(B) (3d ed. 2017). At the same time, we have not foreclosed the possibility that “seven notes” could constitute an original expression. Swirsky, 376 F.3d at 852. To the contrary, our sister circuit observed decades ago that “the seven notes available do not admit of so many agreeable permutations that we need be amazed at the re-appearance of old themes.” Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275, 277 (2d Cir. 1936).
In view of our precedent and accepted copyright principles, the district court did not commit a reversible error by instructing the jury that a limited set of a useful three-note sequence and other common musical elements were not protectable.
The district court also instructed the jury on copyright originality in Jury Instruction No. 20, which states:
An original work may include or incorporate elements taken from prior works or works from the public domain. However, any elements from prior works or the public domain are not considered original parts and not protected by copyright. Instead, the original part of the plaintiff’s work is limited to the part created:
independently by the work’s author, that is, the author did not copy it from another work; and
by use of at least some minimal creativity.
Despite Skidmore’s claim that the following language has no support in the law and was prejudicial—“any element from prior works or the public domain are not considered original parts and not protected by copyright”—this is black-letter law. See 17 U.S.C. §§ 102(b), 103. Reading this sentence with the preceding one—an “original work may include or incorporate elements taken from prior works or works from the public domain”—we conclude that Jury Instruction No. 20 correctly instructed the jury that original expression can be the result of borrowing from previous works or the public domain.
Skidmore appears to want less than the law demands. In his closing and on appeal, he argued that a work is original as long as it was independently created. Not quite. Though not demanding, originality requires at least “minimal” or “slight” creativity—a “modicum” of “creative spark”—in addition to independent creation. Feist, 499 U.S. at 345–46, 362. Jury Instruction No. 20 correctly articulated both requirements for originality, that the work be created “independently by the work’s author,” and contain “at least some minimal creativity.” The court’s omission of the optional, bracketed language from the Ninth Circuit Model Jury Instruction 17.14 (2017)—which reads, “In copyright law, the ‘original’ part of a work need not be new or novel”—was not a reversible error. The reference to “minimal creativity” in Jury Instruction No. 20 embraces this concept. Reviewing the jury instructions as a whole, we conclude that the originality instructions were sound and were not prejudicial to Skidmore.
The district court did not give what Skidmore denominates as a “selection and arrangement” instruction. Because Skidmore did not preserve his objection to the omission, we review for plain error.
Skidmore maintains that his objection was preserved by the timely filing of a proposed selection and arrangement instruction and by objecting to Led Zeppelin’s version. Not so. Federal Rule of Civil Procedure 51(d)(1)(B) provides that “a failure to give an instruction” must be both “properly requested . . . and . . . also properly objected [to].” An objection must be made “on the record,” “promptly after learning that the instruction or request will be . . . refused.” Fed. R. Civ. P. 51(c)(1), (c)(2)(B). Skidmore may have requested a selection and arrangement instruction, but he did not object to the district court’s decision to omit the instruction. In other words, Skidmore’s proffer of the instruction was necessary but not sufficient to preserve the objection. See United States ex rel. Reed v. Callahan, 884 F.2d 1180, 1184 (9th Cir. 1989) (objection waived where “counsel offered the . . . proposed instructions” but “no objection was made to the failure to give them”); Monroe v. City of Phoenix, 248 F.3d 851, 858 (9th Cir. 2001) (objection waived where counsel “simply submitted a proposed jury instruction” but “failed to properly object at trial to the failure to give the proposed instruction”), abrogated on other grounds by Scott v. Harris, 550 U.S. 372 (2007).
Nor is this the type of situation where “it is obvious that in the process of settling the jury instructions the court was made fully aware of the objections of the party and the reasons therefor and further objections would be unavailing.” Reed, 884 F.2d at 1184. According to Skidmore, he could not object to the refused instruction because the district court forbade oral objections. The record tells a different story. Skidmore’s myriad other objections, all allowed by the district court, undermine his account of the procedure at trial. For example, Skidmore requested the omission of an instruction on a topic not presented to the jury; objected to the wording of several jury instructions; and proposed a new jury instruction. The court’s response was to entertain extensive discussion from the parties about the instructions, letting them state their objections “for the record.” Further, the court asked Skidmore to draft the proposed new instruction and bring it in the next day.
A parallel omission situation is illuminating. Skidmore objected to the court’s refusal to include a jury instruction on the inverse ratio rule. The judge overruled that objection without suggesting that he would not entertain others. Indeed, when raising the inverse-ratio objection, counsel said “one last thing,” implying that he had no other objections. In contrast, Skidmore did not object to the court’s refusal to include a jury instruction on selection and arrangement during the extensive discussion counsel and the court had on jury instructions. Nor did Skidmore object to the omission of the selection and arrangement instruction before the jury was summoned the next morning.
Skidmore was responsible for compiling the court’s final instructions, so he was well aware of what instructions were included and omitted. The court affirmatively engaged with Skidmore when he wanted to “make sure” that certain instructions had been included. Although Skidmore argues that the selection and arrangement theory was central to his infringement case, his conspicuous silence on the omission of what he claims to be a crucial instruction cannot be squared with the court’s willingness to discuss specific instructions. On this record, it was not “obvious” that an objection to the failure to give a selection and arrangement instruction would be “unavailing.”
In any case, there is a real possibility that the district court simply overlooked the instruction, and would have been willing to give one had the omission been brought to its attention. But absent notice and an objection, the district court cannot be expected to divine an objection to an omitted instruction. We do not impose such prescience on the district court in the face of the complicated, and often hurried, process of producing a final set of instructions. We noted long ago that the district court need not “rummage through . . . proposed instructions in an effort to discover potential objections to instructions not . . . given . . . .” Bertrand v. S. Pac. Co., 282 F.2d 569, 572 (9th Cir. 1960). By not putting the district court on notice of an objection to a refused instruction, Skidmore forfeited his objection. Therefore, we apply plain error review. Fed. R. Civ. P. 51(d)(2).
Because Skidmore did not preserve his objection, we review the omission of a selection and arrangement instruction for “a plain error in the instructions . . . if the error affects substantial rights.” Fed. R. Civ. P. 51(d)(2); see Chess, 790 F.3d at 970. Under plain error review of a civil jury instruction, we consider whether “(1) there was an error; (2) the error was obvious; and (3) the error affected substantial rights.” C.B. v. City of Sonora, 769 F.3d 1005, 1018 (9th Cir. 2014) (en banc). Even where these demanding requirements are met, “the decision whether to correct a plain error under Federal Rule of Civil Procedure 51(d)(2) is discretionary,” typically invoked only where “the error seriously impaired the fairness, integrity, or public reputation of judicial proceedings” “to prevent a miscarriage of justice.” Id. at 1018–19.
Even if there was an error in not giving the instruction, and even assuming the error was plain, we cannot conclude that it produced a miscarriage of justice. The district court did not err in withholding the studio version of Taurus from the jury. A selection and arrangement instruction would not have convinced the jury that Stairway to Heaven was substantially similar to the deposit copy of Taurus. Therefore, the failure to give the selection and arrangement instruction cannot have “likely prejudiced the outcome of the case,” or “seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Hoard v. Hartman, 904 F.3d 780 787 (9th Cir. 2018) (internal quotation marks omitted). We may also take “into consideration ‘the costs of correcting [the] error,’” id. (quoting C.B., 769 F.3d at 1018), and that factor clearly supports letting the jury verdict stand. This case involved a lengthy trial, and there is little reason to have another trial that Skidmore cannot win.
“Rare is the case where the district court’s errors are so grave as to ‘seriously impair[ ] the fairness, integrity, or public reputation of judicial proceedings.’” Id. at 791 (alteration in original) (quoting C.B., 769 F.3d at 1019); see also Teixeira v. Town of Coventry ex rel. Przybyla, 882 F.3d 13, 18 (1st Cir. 2018) (describing such errors as “hen’s-teeth rare”). This is not such a case. The district court did not commit a plain error in deciding not to give a selection and arrangement instruction.
Finally, we conclude that the district court did not commit any error. The fatal flaw in Skidmore’s argument that he was entitled to a selection and arrangement instruction is that he did not present that as a separate theory at trial. To be sure, a copyright plaintiff may argue “infringement . . . based on original selection and arrangement of unprotected elements.” Metcalf, 294 F.3d at 1074 (quoting Apple Computer, 35 F.3d at 1446). The supposed centrality of a selection and arrangement theory is belied by the trial record. Skidmore never once used the words “selection” or “arrangement” during trial. But we do not rest our discussion on invocation of copyright vernacular; more importantly, Skidmore never presented the argument to the jury. Nowhere did Skidmore argue that the claimed elements were selected and arranged in a particular way to create the resulting four-bar passage in Section A of the musical composition in Taurus. Nor was there a word in Skidmore’s closing about the selection and arrangement theory. Notably, our decision here is based on the trial evidence and not an appellate adjudication of copyrightability.
At trial, Skidmore’s copyright infringement claim was based on the combination of five elements: minor chromatic line and associated chords; duration of pitches of minor chromatic line; melody placed over the descending chromatic line consisting of combination of arpeggios and two-note sequences; rhythm of steady eighth note beats; and pitch collection.
Plaintiff has filed a claim against Defendants for violation of the United States Copyright Act, which governs this case. In order for you to undertake your responsibility, you must know what a copyright is, what it protects, and what it does not protect.
Copyright confers certain exclusive rights to the owner of a work including the rights to:
Reproduce or authorize the reproduction of the copyrighted work;
Prepare derivative works based upon the copyrighted work.
Distribute the copyrighted work to the public; and
Perform publicly a copyrighted musical work.
Copyright only protects the author’s original expression in a work and does not protect ideas, themes or common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes.
Also, there can be no copyright infringement without actual copying. If two people independently create two works, no matter how similar, there is no copyright infringement unless the second person copied the first.